What is trademark
A Trade Mark is defined as a mark capable of being represented graphically and of distinguishing a person's goods or services from those of others. Examples of traditional forms of trade mark include word marks, logos, device marks, slogans, letter marks or combination thereof. Trademarks are jurisdictional in nature and hence one should apply for the protection in all the jurisdictions where they have the market and where they will have the market in 5-10 years from the date of such application. As the Indian Law categorically states that a trade mark must be capable of being represented graphically, some of the non-traditional marks are difficult to register in India. It could be product mark, service mark, collective mark or certified mark.

Non-traditional marks are the marks such as scent, sound, taste, shape, touch and motion.

Use of TM, SM and ® symbols
'TM' stands for Trademark and 'SM' stands for Servicemark. The use of TM and SM symbols notifies the public that the company is claiming exclusive ownership of the trademark and can generally be used by one who has filed a trademark application.
The ® symbol, can be used only once the trademark is registered and the registration certificate is issued. Also, you may use the registration symbol only in connection with the goods and/or services in respect of which the trademark is registered.

Why register trademark
The registered user of the trademark gets exclusive right to use the trademark. It helps in identifying the quality, service, origin of the goods or services. Further, they are granted right to just use “R” or “R” in a circle to indicate the fact that it is registered. It is an intangible asset and an investment where the owner can identify the value of the trademark while selling it, licensing it.

Who can register trademark and how long is a trademark protection for
Any individual or proprietor can apply for trademark.The trademark protection is forever provided one gets the trademark renewed every once in 10 years. Further, it has to be renewed where the original application was made.

How to register a trademark
Every trademark registration process starts with a comprehensive search in the jurisdiction where such application is to be filed. Upon satisfaction that there is no one else using the same mark for the same kind of goods or services one can then proceed to apply for registration. If there are similar marks then it is wise to create another trademark especially because trademark is for the purpose of helping consumers to recognize the goods or services.
Other formal requirements have to be met in order to apply for registration such as completion of the forms, submission of the mark to be registeredetc and other such formalities that the attorney asks for.

TMR Flow Chart

Protection of a trademark
Even after the formal registration of the trademark, one needs to protect the mark by monitoring if others are using the mark that will/might cause confusion to the consumers. If so, then the TM owner has to necessarily send the cease and desist notice to such infringers. Not protecting the trademark might amount to abandonment and one looses the exclusive right over the trademark.

TM monitoring
In order to make sure no one is confusingly using the trademark one should consistently monitor their trademark by doing searches on the internet and in the trademark journal.

International TM registration
One can apply for trademark registration in multiple jurisdictions through international treaties such as Madrid Protocol. At present there are 91 countries that are members of the treaty. The member countries are in the following link:

http://www.wipo.int/export/sites/www/treaties/en/documents/pdf/madrid_marks.pdf
One needs to essentially file a trademark application in India in order to file internationally.

The international filing fees can be calculated in the below link:
http://www.wipo.int/madrid/en/fees/calculator.jsp

What is design?
Design protection gives ornamental or aesthetic protection to the outer appearance or shape of an object.Any new or original design that has not been published anywhere in any country and something that can be reproduced.

Term of protection
Design is protected to a period of 10 years and 5 years after that upon renewal.

How to mark a design?
One needs to compulsorily put the “REGD” or “RD” beside their protected product. One cannot claim damages if the proprietor fails to do so.

Process

What is Copyright?
Copyright protection is important and crucial for the authors of “original works of authorship”. Some examples are literary, dramatic, musical (audio, visual), artistic, cinematographic and sound recordings. It is a bundle of rights. The works get automatic protection the minute it is translated into a tangible form.

Use of © symbol
One can and should start using the symbol even without formally registering the copyrightable material.

How long is the copyright protection valid for?
Copyright protection is valid for the life of the author and 60 years after their life. If there are more than one author then the term is calculated as per the life of the last surviving author.

Why to register Copyright?
Copyright is a prima facie proof that you are the original author and will have rights to ask other authors who are infringing, to stop doing so. Without registration one will have to prove that they are the original authors. This can take a lot of time and money and further there is no guarantee of the result.

How to register a Copyright
The author has to submit his entire work online at http://www.copyright.gov.in


Flow diagram acknowledgment:http://copyright.gov.in/frmWorkFlow.aspx
Depending on the nature of work, the fees can vary between Rs.500-Rs.5000.
For further information please visit: http://copyright.gov.in/frmFeeDetailsShow.aspx

Fun Facts About Patents
The word 'patent' comes from the Latin 'litteraepatentes', meaning an open letter. The first recorded patent of invention was granted to John of Utynam. In 1449, he was awarded a 20-year monopoly for a glass-making process previously unknown in England. In return, John was required to teach his process to native Englishmen. That same function of passing on information is now fulfilled by the publication of a patent specification. The first Patent Act of the U.S. Congress was passed on April 10, 1790, titled "An Act to promote the progress of useful Arts".[13] The first patent was granted on July 31, 1790 to Samuel Hopkins for a method of producing potash (potassium carbonate)

General Advice to Applicants
India follows the first to file system. This means that an applicant who files first get the priority and gets the patent as well.Hence, protection for patent should be applied for as soon as it crosses the conception stage.
One can apply for provisional application with the bare minimum details. However, bear in mind to submit the complete specification within one year of the filing of the provisional application. Not doing so will amount to abandoning the application and will be open for public.
Please do not disclose your invention to a 3rd party, or publish about the paper or share it in a conference. Keep it as confidential as possible until you apply for the patent. Failing to keep it confidential is the defense for non-patentability of inventions.

What is Patent?
Patent is a protection given, in return to full disclosure of the invention. The Government gives certain rights to the patent owner. These rights grant exclusive right to exclude others from making, using, selling or importing the patented invention for a period of 20 years from the date of filing the application.
A patent could be for process, product, composition, For example; software,pharmaceutical and neutraceutical drugs, electronics and electrical appliances, can be patented apart from other patentable subject matters such as chemicals, plant varieties etc.

Documents Required For Filing An Application
1. Application form in triplicate.
2. Provisional or complete specification in triplicate. If the provisional specification is filed it must be followed by complete specification within 12 months (15 months with extension).
3. Drawing in triplicate (if necessary).
4. Abstract of the invention (in triplicate).
5. Information and undertaking listing the number, filing date and current status of each foreign patent application in duplicate.
6. Priority document (if priority date is claimed).
7. Declaration of inventorship where provisional specification is followed by complete specification or in case of convention application.
8. Power of attorney (if filed through Patent Agent).
9. Fee in cash/by local cheque/by demand draft.

Where to File in India
Application is filed as per the applicant’s residence or domicile is or where the place of business is or where the invention actually originated. If the applicant for the patent or party in a proceeding having no business, place or domicile in India., the appropriate office will be according to the address of service in India given by the applicant or party in a proceeding.

Work Flow Chart

Examination, Publication, Opoosition and Grant
All the applications for patent accompanied by complete specification are examined substantively. The applicant has to request for the First Examination Report where the patent office states its objection(s) in writing. Once the objections are met with (one has 15 months with 3 months additional time, the application is published in the journal for any opposition. This has to be done within 4 months of notification with 1 grace month.
If the application is not opposed or the opposition is decided in favour of the applicant or is not refused the patent is granted or sealed on payment of sealing fee within 6 months from the date of advertisement. However, it is extendable by three months.

Renewal Fee
Renewal fees are payable every year. One has to pay the entire fee for the first three years within the second year anniversary. If the patent has not been granted then one has to pay within three months of seal from the patent recorder. One does gets six months grace period of extension only with submittal of the extension form.

PCT(Patent Co-operation Treaty) is an international treaty wherein an inventor files one application through PCT route in order to get patent protection in multiple countries.

Note that the PCT system does not examine patent applications fully and it does not grant patents. However, the PCT system does enable you to delay the very expensive step of filing many individual foreign patent applications, and it does provide you with some information for assessing the prospects of actually obtaining granted patents, and their potential scope of protection, before major costs are incurred. It is a time consuming process and can be expensive. Hence, one should take the PCT route only if there are more than 3-4 countries where protection is to be taken.

PCT Application in India:
India is a member of WIPO and hence Indian citizens as well as foreign applicants can apply for patent protection in India by submitting PCT applications. The National Phase of a PCT Application in India is similar to the filing of a regional patent in India.

Benefits of PCT application:
• Lower costs at the end of the priority period;
• Decisions about where to pursue patent protection, and the substantial costs of filing individual foreign patent applications, are delayed until the end of the International Phase (typically an additional period of about 18 months);
• If the decision to seek foreign patent protection is taken very near to the end of the one year priority period, there may not be sufficient time to prepare and file individual foreign patent applications; instead, a single PCT application, in English, can be filed.

The applicants need to furnish the following documents:
• The title, description, drawings, abstract and claims as filed with the International Application under PCT shall be taken as the Complete Specification or if there is an amended specification, such specification shall be taken as Complete Specification for the purpose of filing in India.
• If the applicant has not received the Form PCT/IB/308, will the application need to obtain a copy of the international application.
• Name, address and nationality of the applicant.
• Power of Attorney.
• Translation or International Copy in duplicate.
• If the applicant is not the inventor then a document to show such assignment has to be produced.
• Statement that they are the true inventor in case of translation, where there are international patent applications, such declaration has to be made within 6 months of national phase entry of the application.
• Any change of applicant’s name.

To know about the cost of the filing please click on the link: http://www.pctnationalphaser.com/info/pricing

To know more about the PCT filing procedure, please visit our blog page.

IP Litigation
There are civil, criminal and administrative remedies that an Intellectual Property owner can obtain when there is an infringement.

1. Civil Remedies:

A suit or other civil proceedings relating to infringement or passing off has to be filed in the District Court within whose jurisdiction the plaintiff resides or carries on business or where the cause of action arises irrespective of the place of residence or place of business of the defendant. The period of limitation for filing the suit is three years from the date of infringement. Further in case of copyright, trademark and patent infringement, the following civil remedies are available.

• Interim or temporary injunction: It is an interim order from Court prohibiting the opposite party from an action until the disposal of the suit. In order to get interim injunction plaintiff has to establish that there is prima facie case in his favour and if the injunction is not granted he will bear irreparable loss.

• Permanent Injunction: Permanent injunction is a final order of the Court against a person or entity. It restrains certain activities permanently or takes some actions in perpetuity.

• Mareva Injunction: It is an order from Court prohibiting the opposite party from disposing their assets within the jurisdiction of the Court until the disposal of the suit.

• Anton Piller Order: An order from the Court allowing the plaintiff to enter into the defendants premises and do the inspection of documents and articles and remove them for safe custody, if the plaintiff believe that the defendant is in possession of vital evidence which he/ she could easily destroy or hide if they became aware of the legal proceedings.

• John Doe Order: The name “John Doe” is used to identify unknown/nameless defendants/infringers, who have allegedly committed some wrong, but whose identity is unknown to the plaintiff. To avoid delay and render justice, the Court names the defendant as “John Doe”, until such time the defendant is identified. The orders passed by Court in such cases are thus popularly known as “John Doe orders”.

Damages: In assessing the damages the important question is what is the loss sustained by the plaintiff. The loss must be the natural and direct consequence of the defendants’ acts. The object of damages is to compensate the plaintiff for his loss or injury.

Accounts of profits:
• It is an equitable remedy and requires the defendant to hand over to theplaintiff the actual amount of profit made by him due to the infringement activities.
• An order for delivery –up of infringing labels and marks for destruction or erasure.

2. Criminal Remedies

Criminal remedies available to the owners for infringement are as follows.

• Copyright: Copyright infringement is a cognizable offence (is a case where the police can arrest without a warrant)punishable with an imprisonment upto 3 years and a fine extending upto Rs.2 lakhs. Recent amendment have made the imposition of punishment to a minimum term of 6 months and a fine of Rs.50,000 mandatory unless for special reasons to be recorded if the magistrate awards lesser punishment than the minimum.

• Trademark: The minimum imprisonment that an infringer can get under The Trade Marks Act, 1999 is of 6 months and minimum of Rs.50, 000 which may extent to a maximum of 3 years and up to 3 lakhs.

• Patent: No criminal remedies under the patent law in India.

• Design:If anyone contravenes the copyright in a design he is liable for every offence to pay a sum not exceeding Rs. 25,000/- to the registered proprietor subject to a maximum of Rs. 50,000/- recoverable as contract debt in respect of any one design.

• Geographical Indications (GI): The criminal remedy for infringement of GI is punishment to the offender which can be a minimum mandatory sentence of 6 months imprisonment and maximum of 3 years and the minimum mandatory fine of Rs.50,000/- and a maximum of Rs.2 lakhs. In case of subsequent convictions of the same offence, the minimum mandatory sentence will be one year imprisonment and fine of Rs.2 lakhs.

3. Administrative remedies:

Customs has broader responsibility of border control and IP protections, since there cannot be any better solution for intellectual property protection than seize infringing goods at the border itself. Customs provides exclusive website for online recording of intellectual property. With this, they have integrated this online IP recordation database with their risk management division, making it easier and effective to communicate with officers dealing with imported cargo. On the basis of such record, Customs has successfully made seizures. After seizure, the Enforcement Rules have also given the power of adjudication on related matter to Customs.

The Protection of Plant Varieties And Farmers’ Rights Act, 2001

Introduction
Plant variety protection is given new, distinct, uniform, and stable sexually reproduced or tuber propagated plant varieties. Protection of plant varieties has become an important issue because the breeding activities and exploitation of new varieties are the decisive factors for improving rural income and their overall economic development. Since the process of plant breeding is long and expensive, it is important to provide an effective system of plant variety protection with an aim to encourage the development of new varieties of plants for the benefit of society. If a person breeds plants, has discovered and developed a new plant variety, he is called a "breeder" and he can seek protection for the new plant varieties by applying for a Grant ofProtection for a Plant Variety. Registration of plant varieties can be made in the office of Registrar, Protection of Plant Variety & Farmers’ Rights Authority, New Delhi.

Registration process
An application goes through two stages prior to registration. In the first stage, all applications received by the Authority are compiled and published on its website. In the second stage, only those varieties whose applications have been granted certification for “DUS” (distinctiveness, uniformity, stability) testing are subsequently published in the Plant Variety Journal. At this stage, any objections to registration may be put forward for consideration. The details of an application are posted in the Plant Variety Journal of India once it is approved for registration. Every application requires a processing time, which may range from 8 to 20 months. Registration is granted on the basis of the denomination, also called the “the label or title” of a variety. Once a variety is registered, it is again advertised in the Plant Variety Journal of India as a registered variety. The breeder then has the exclusive right to market and produce the crop for a period of 15 years in the case of annual crop varieties, and for 18 years in the case of trees and vines.

In order to enjoy the protection:
 The new plant variety must be new.Any variety which is already in the market, but not for more than a year, can also be applied for registration as a new variety.
 The new variety should be distinct from the other varieties for at least onecharacteristic.
 The relevant characteristics of the variety remain unchanged after repeated propagation(reproduction)
 The breeder of the new variety has to propose a suitable denomination as its generic designation for approval. A denomination is the distinguishing name or identification for the plant variety.

Application for registration of a variety can be made bythe breeder of the variety,his successoror his assignee, any farmer or group of farmers andany University or publicly funded agricultural institution.
The breeder has to submit the seed or propagating material including parental line seeds of registered variety to the Authority along with the seed quality test report. The authority then tests the seed samples for its purity and germination. A part of the seed sample will be sent to the test centre for conduct of DUS(Distinctiveness, Uniformity and Stability) tests and a part of it will be kept by the Authority in the National Gene Bank to maintain the seed samples of the registered varieties for their entire period of protection.

Geographical Indications are generally traditional products, produced by rural communities over generations, that have gained a reputation on the markets for their specific qualities.Usually GI are place names used to identify the origin and quality and reputation of products. It is mainly used to identify the agricultural, handicraft, manufacturing goods from the particular territory which has developed a good will in the market due to the special characteristics like temperature, humidity, soil etc. associated with the territory that are unique. Example: Aranmula kannadi, Kanchipuram silk saree, Basmati rice, Nagpur orange, etc .

False use of geographical indications by dishonest traders is detrimental to purchasers and legitimate producers. The registration of a GI gives the authorised users the exclusive right to use the GI in relation to the goods it is registered. The applicant must represent the interests of the producers of the concerned goods. The term of a geographical indications registration is for a period of ten years and you should do renewal every 10 years.

Registration process
On receipt of the application, a number will be allotted. Thereafter, the application would be examined to check whether it meets the requirements of the concerned Act and Rules. After issuance of the Examination Report, submissions of the applicant would be considered. If no further objection is raised, the application would be accepted and would be advertised in the Geographical Indications Journal. An opposition can be lodged within three months from the date of publication. Any person can oppose the registration of geographical indication by giving a notice in writing of opposition to the registrar. If the opposition is not dismissed, the application will proceed for registration unless the Central Government otherwise directs.

GI is not transferable
Unlike other intellectual property rights the right to a GI is not transferable. It can not be a subject matter for assignment, licensing, pledge or mortgage. But after the death of the authorised user , his right in a registered GI will devolve on his successors.

Difference between trademark and geographical indications
• A geographical indication is used to identify goods having special characteristics originating from a particular place whereas trademark identifies the source of goods or services of an enterprise from those of others.
• A geographical indication is usually collectively owned by a community, a group of producers or even by a Nation whereas a trademark is exclusive right on the owner to use the mark.